February 16, 2006

"I was frightened to death for the first three years," he said in a recent conversation....

He had felt adequately prepared and had expected to move comfortably into his new role, he said, and was therefore surprised at how overwhelming he found it.

"I was afraid I might inadvertently write something harmful," Justice Breyer said. "People read every word. Everything you do is important. There is a seriousness to every word, and you really can't go back. Precedent doesn't absolutely limit you. In almost every case, you're in a wide-open area. The breadth of that opening, getting up to speed on each case, constitutional law as a steady diet, the importance to the profession. ..." His voice trailed off, and he shook his head. "My goodness!" he exclaimed.

Maybe you think those expressions of timorousness are a bit of a pose, but I'm inclined to take him at his word here. It rings true. Don't you think that's how you would feel if you had this responsibility? Or would you get a charge out of the sheer power?

Here's his explanation for writing his book "Active Liberty: Interpreting Our Democratic Constitution":

"An approach is not a theory," he said. "And it's not ad hoc. It's somewhere in the middle. It's consistency. I wanted to know, Am I being arbitrary? What is the check? After a while, a judge begins to leave footprints. Writing the book, the doing of it, forced me to work through and find the coherence."

Only a certain type of mind thinks about constitutional interpretation that way. You might think that a Justice needs to commit to a theory of interpretation beforehand, try to follow it, and then judge his work by whether he played it straight as he applied the theory in the particular cases. Breyer is looking at the accumulated work over the years and discerning the pattern of his behavior, creating an argument for why it is coherent. This approach, by the way, is one you might use to write a scholarly article about the Court: you look at a set of cases and discern a theory that explains them. Is it odd for a Justice to do that with his own work? Perhaps we need to say that a Justice who operates in this manner, only discerning his theory in retrospect, really does have a theory from the outset: the theory is pragmatism.

37 comments:

Justice Breyer is articulating the necessity for principled behavior in reaching a decision. Each of us are subjected to moral imperatives that guide us through our decision making process and actions.

The question begged is whether our decisions are made on core beliefs of empirical fact and common sense or the shifting tides of popular culture and irresponsible behaviour in search of acceptance.

Breyer will always struggle with the human question of justice versus mercy. Does the means justify the end? Does the end justify the means? Is the means and end in itself?

Interesting. This reminds me of two things: the writers' old saw "I don't know what I think until I see what I say," and the project in some kinds of therapy (I don't know what they're called) of looking retrospectively for a "story" in your life -- maybe a different or more positive one than you've been living by. Don't most people live and learn that way? Even if you started out with a firm principle, you'd probably look back and find that you'd had to amend or bend it because life and law didn't fit it neatly.

Breyer recently stated that he concentrates on the consequences of his decision more than other approaches to the law (such aa strict interpretation). He said this tilt towards the consequences is front and center with the Ten Commandments cases where he (Breyer) thought the Ten Commandments display in a state park would probably cause less controversy than the Ten Commandments display in the court house. This is a ridiculous way to decide a case. Whether the placement of the Commandments will spark contoversy is no way to decide a case.

This "consequences" argument is what is the problem with our judicial system. Too many judges like Breyer beleive that they know what is best or society. Ruling on what the consequences will be is not the "Rule of Law." It is what the judge decides at the moment what he or she believes is a good or bad outcome; in other words, judicial activism.

No doubt consequences should be considered when deciding issues. However, they should not be the first consideration on the list.

We need to avoid having Breyers in the future (especially the liberal ones).

"Breyer is looking at the accumulated work over the years and discerning the pattern of his behavior, creating an argument for why it is coherent."

Does this just not strike anyone else as just not being normal behaviour? Instead of starting from the premise that one needs a working theory and looking for one that works, this is the complete opposite: it's starting from what works (or at least, what one has already done) and seeking its premise (i.e. trying to rationalize why you did it). If you're a guitar player, I suppose there's some merit in analyzing your style and working out exactly what it is that you do, but by contrast, as a judge, it seems to me that you should know what you're doing before you do it, rather than going ahead and hoping for the best, figuring it'll all seem coherent in retrospect.

It seems to me that the whole point is that Breyer is being a tad too simplistic. The problem is perfectly encapsulated by David's comment: "Breyer will always struggle with the human question of justice versus mercy." That isn't Breyer's call to make, though! The question isn't "is this law unjust," it is, "is this unconstitutional?"

Breyer's theory invites abuse. It just invites a judge to inpose their own views; whatever one can say about Justice Scalia's occaisional departures from originalism, it remains inescapable that the theory itself is, if not perfect, then at least much better at circumscribing the potential for abuse: indeed, it says something that most of Scalia's departures require him to actively abandon (or at least ignore) textualism and originalism. By contrast, Breyer's theory is "whatever seems right" - a philosophy that, by definition, cannot be departed from.

Does this just not strike anyone else as just not being normal behaviour? Instead of starting from the premise that one needs a working theory and looking for one that works, this is the complete opposite: it's starting from what works (or at least, what one has already done) and seeking its premise (i.e. trying to rationalize why you did it).

On the contrary, it seems like extremely normal behaviour. I mean, who doesn't engage in post-hoc rationalisation of his own behaviour? We all make decisions and then struggle, afterwards, to find some means of justifying them within a coherent framework. It's a rare person who engages in decisionmaking according to a single, unitary, comprehensive coherent, intellectually defensible rubric.

I don't really understand this criticism of Breyer. How would you rather have him decide cases?

Justices who advocate a consistent theory are probably just trying to hide the ball. The guy who claims he's being the most consistent is the one you have to watch.

Consider Justice Scalia. He claims to have a consistent approach: look at the original intent of the Founders, read the text, open up your dictionary, and go home. However, it just so happens that this approach to law results in uniformly consistent ends -- for instance, that property owners always win, that interstate commerce extends just far enough to include illegal narcotics, and that George W. Bush wins the 2000 Presidential election.

It seems to me that Breyer determines individual cases on the merits. He interprets the Constitution, instead of trying to put words into the mouths of men who have been dead for 200 years. He's on the Supreme Court because the President and the Congress trusted his judgment. I'm leery of people who claim to have a uniform, one-size-fits all approach to something as important as Supreme Court jurisprudence.

I'm leery of people who claim to have a uniform, one-size-fits all approach to something as important as Supreme Court jurisprudence.

And on the flip side, many of us are leery of people who have no principles we can point out to say "you've broken your own rules." The way you can with Scalia. The reason people think he's hypocritical is precisely because he has a coherent theory of interpretation, and we can call him on it, when he fails to adhere to it, or twists it to achieve a particular result. With Breyer, there's no way for anyone but Breyer to do that easily -- you just go back afterwards and tweak your model of how he decides cases (the way he tweaks his own, apparently). Until he declares fidelity to a model of decisionmaking, there's no way for us, standing outside his head, to say whether he's being conscientious or not.

You can try an argue that he's gone one way in one case and contradicted himself broadly in another, but every lawyer knows you can draw all the distinctions you want if you ever really need to. No two cases are exactly alike. The absence of clearly articulated governing principles lets one escape any charge of hypocrisy (or rather, arbitrariness) by explaining inconsistency away as some hitherto unnoticed nuance of one's approach.

Terry,"I don't really understand this criticism of Breyer. How would you rather have him decide cases?"

I would like him to decide the cases using formalist tools like textualism and originalism. Frankly, you display your ignorance regarding Justice Scalia by firstly suggesting he is interested in the original intent of the Founders, something Scalia has consistently and repeatedly rejected since the late 1980s, and secondly, by implying that it always produces results that he likes (I somehow doubt that Scalia is a big fan of flag burning, Johnson v. Texas, child molesters, Maryland v. Craig, growing marijuana at home, U.S. v. Kyllo, and letting convicts off lightly, Apprendi et al, to name but a few, and while Scalia certainly has voted to uphold state restrictions on abortion, he has unambiguously said that he would vote to strike down a federal regulation on the same. By contrast - how many judgements has Justice Breyer handed down that he strongly disagrees with in terms of his normative preferences? Which of Justice Breyer's opinions represents a genuine divergence from what one would presume to be his own proclivities? While you're certainly correct to say that Scalia does wander off the reservation from time to time (although it escapes me why on Earth you would pick Bush or Raich as an example when the most egregious, indefensible departure by Scalia, Green v. Bock Laundry Machine Co., is easily available; perhaps Green simply isn't as flashy and sexy as Kelo? It seems to me that the best measure of a judge is not the big, sexy cases that make the headlines, but the way they behave when they think no one's looking), I would rather a Judge operate under a theory which is usually held to, but occaisionally set aside, to the fluffy, standardless nonsense advocated by Breyer and the living documentarian tendancy.

I would like him to decide cases in a very simple way: on the presmption that the law is what the law says. I don't mind looking at precedent, I just say it can't be used to trump the text; I don't mind a purposivist inquiry, I just say it can't be used to trump the text; I don't even mind an original intent inquiry, it just can't be used to trump the text. The inquiry starts and finishes not with what they intended to do, not with what purpose they had in mind, but what they actually did; any other inquiry is permissable as long as it is in search of what the law meant at the time, rather than an attempt to get around what it actually says. The law is as it is written, as its meaning would have been originally understood in the plain language of the time, and that meaning is binding on Judges. Would I prefer it if Brother Nino would stick to the same script, as Brother Clarence usually does? Sure, but then Scalia would not be Scalia, and even on a bad day, I trust him, his theory and his judgement a lot more than I trust Breyer's.

"You can try an argue that he's gone one way in one case and contradicted himself broadly in another, but every lawyer knows you can draw all the distinctions you want if you ever really need to. No two cases are exactly alike. The absence of clearly articulated governing principles lets one escape any charge of hypocrisy (or rather, arbitrariness) by explaining inconsistency away as some hitherto unnoticed nuance of one's approach."

This is precisely the point that Scalia makes in The Rule of Law as a Law of Rules.

Aside:Sooner or later, I keep hoping the Chicago Law Review will actually do me the courtesy of either refusing or accepting my request to reproduce it at Ninoville, as mostly every other journal which has published Scalia's work has given me permission to do, but for the time being, they seem perfectly content to rudely completely ignore every message I've left them and e-mail I've sent them since the Fall. I have to admit, my respect for Chicago has gone rapidly downhill over this; saying "no" is one thing, but - contra Alison Krauss - law journals do not say it best when they say nothing at all. Still, that's top-flight Law Journals for you, I suppose. :)

It seems Breyer's approach is more like Richard Posner's than any other judge: Liberty and Pragmatism, My Way.

The problem with both these dudes is that they think they can foresee the consequences of decisions. They're smart guys, but it's just a guess most of the time. And why should their guess count more than Congress, the President, a state legislature, a governor or a jury's guess.

The problem with raw pragmatism is that "the evaluation of an action as practical . . . depends on what it is that one wishes to practice."

Yeah, that's a quote from Ayn Rand. It's still a valid point. Pragmatism in maximizing human happiness is going to look different from pragmatism in maximizing liberty, socioeconomic equality, or adherence to the will of God. "What works" depends entirely on your definition of working.

And what end society should be aimed at strikes me as a philosophical question in theory and a policy question in practice. Which brings us to a question in evaluating Justice Breyer — is it appropriate for a democracy to have policymakers with lifetime appointments?

At the height of the modernist movement, there was a raging debate on whether "critical studies" was a legitimate form of study, or whether the more traditionalist view of the subjects in question should be maintianed.

Traditionally, all precedent was thought to be coherent and consistent, and when it wasn't, then some precedent had been overturned. There was such a thing as the law, the theory went, and all of the common law was extrapolating upon it.

Critical Studies maintained that the way to understand the law was to look at the patterns of actual cases, rather than the expressed principles in the opinions, to understand how the law worked. This explained the tremendous about of twisting and turning that the common law often had to partake in to reach a just conclusion. While the courts could never say as much, some of the patterns in cases were as simple as "common carriers never loose," or "we don't like people who are being obstructionist." They explain the patters of case law better than theories of property tranferall and the defnintion of a "fee simple." And in a lot of ways, they're more in accordance with the everyday notions of dispute resolution.

Whether this is a good thing or not, it has certainly shed a tremendous amount of light on the way the law works (this revision in methodology was not confined to legal studies; it swept across the board in the liberal arts). If law is to serve the purposes of justice, we are better served discerning the patterns of law in a manner that illuminates justice, rather than obscures it. Whether we sould then apply those methods, I'm not sure.

But this is what Breyer is doing. He falls in a tradition that people like Carl Llewellyn and Levi Strauss fell into. It's a methodology that gave birth to modern anthropology, to critical textual studies, to whole new approaches to science and humanities. It's been under attack by traditionalist schools of though all along. Perhaps rightfully so.

I think there's a crucial difference between what Breyer is doing and between what Llewellyn et al. were doing -- they were analysing other peoples' judicial decisionmaking. Breyer is analysing his own judicial decisionmaking. He is not extracting a predictive model from a pattern of decisionmaking, finding the patterns in the old precedents; he is extracting a decisionmaking "approach" out of his own decisions. Wasn't Llewellyn's approach about predicting what judges will do? It's just not the same when you are the judge.

"And on the flip side, many of us are leery of people who have no principles we can point out to say "you've broken your own rules." The way you can with Scalia. The reason people think he's hypocritical is precisely because he has a coherent theory of interpretation, and we can call him on it, when he fails to adhere to it, or twists it to achieve a particular result. With Breyer, there's no way for anyone but Breyer to do that easily -- you just go back afterwards and tweak your model of how he decides cases (the way he tweaks his own, apparently). Until he declares fidelity to a model of decisionmaking, there's no way for us, standing outside his head, to say whether he's being conscientious or not."

I don't buy this as a methodology of criticism. I think you can validly criticize a Justice for not comforming to some interpretive theory that you believe you can demonstrate is superior to other methods. Or, if you lack an interpretive methodology, you can criticize a decision for having an unacceptable outcome, on whatever axis you choose to apply. However, criticizing a Justice for failing to offer a sweeping theoretic justification is both overinclusive (you will end up criticizing Justices when they come out in a way you approve of) and underinclusive (it doesn't reach the problem of bad interpretive methodologies, or bad pragmatic results).

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"Frankly, you display your ignorance regarding Justice Scalia by firstly suggesting he is interested in the original intent of the Founders, something Scalia has consistently and repeatedly rejected since the late 1980s, and secondly, by implying that it always produces results that he likes..."

Simon, I can't let you get away with this. Go read Barnett's recent piece on Scalia's "Faint-Hearted Originalism." Scalia himself has openly stated that he would be willing to depart from his own interpretive methodology when he finds the results unacceptable. And he has done so -- no one could call Alden v. Maine or the other recent Sovereign Immunity decisions any kind of textualist decisions -- they might (and I think it is debatable) be original intent decisions, but they cited no controlling text. They did, however, conform very well to Scalia's stated normative preference for respect for state sovereignty. Or go reread Semtek, and then tell me that Scalia is consistently committed to any public meaning when he is interpreting the Federal Rules of Civil Procedure.

Scalia's philosophy of jurisprudence is that text is controlling, except when it isn't. As a textualist, I find that quite problemmatic. I also think that textualism can never be the whole ballgame, because there will be a large number of questions on which the text allows multiple readings. A commitment to textualism doesn't answer any of those questions -- and I think that at that point, few of the Justices could offer a more coherent theory than Breyer of how they make decisions.

Is Active Liberty undertheorized? To my tastes, probably. But that just goes to show that SCOTUS Justices are playing a different game than are legal academics, students and bloggers. The fact that no sitting Justice has ever allowed an absolutist interpretive theory to control their every result goes to show that when faced with the exercise of such power, it is hard to avoid some amount of Posnerian pragmatism. Or at least, that the kind of people who wouldn't approach the job that way, are unlikely to be confirmed to the Court.

However, criticizing a Justice for failing to offer a sweeping theoretic justification is both overinclusive (you will end up criticizing Justices when they come out in a way you approve of) and underinclusive (it doesn't reach the problem of bad interpretive methodologies, or bad pragmatic results).

Well, there are two criticisms implicit in what I was going on about there. The most immediate is of Scalia, and judges who, like him, openly adhere to a particular means of interpreting the authoritative statutory text . . . except when they don't. At which point we criticise them.

The other -- which you are responding to -- is that I criticise judges (like Breyer -- or O'Connor, who is more commonly thought of this way) for failing to give us regular interpretative signposts. You say that:

I think you can validly criticize a Justice for not comforming to some interpretive theory that you believe you can demonstrate is superior to other methods.

And my response would be that I think having a consistent interpretative methodology is superior to other methods. Originalism, after all, does have a theoretical basis behind it (I can think of at least two very different possibly bases -- one for original-intent and the other for original-public-meaning), but the truth is, the theory is not what is most important. The text-oriented consistency is. And I think it's superior to the alternative (not imposing a forward-looking consistency requirement) for two reasons. No, really just one.

And that reason is centered on the people who end up under the terrible sword of the law. We need consistent and predictable approaches interpretation so that people don't end up caught unawares by what the law turns out to be (and end up in jail, or paying through the nose, etc.). We can't get perfect predictability, because language is ambiguous and all, but we can at least make an effort to constrain the field of possible interpretations, can't we? Not everything can be a bright-line rule, but not everything has to be fuzzy either.

And this:

(you will end up criticizing Justices when they come out in a way you approve of)

Ann -->Perhaps. How is the narrative that a judge is confronted with in the courtroom differentiable from that of the scholar absorbing history? In class we're constantly confronted with the fact that the apellate opinions are "fictions" insofar as they're narrative accounts representative of events. In the courtroom judges and justices are confronted with evidence that is equally as removed from actual events. The written text they are presented with canot contain some platonic form of justice that inherently applies to all of the fact situations laid before the court. Or can it? Similarly, the historian looking at cases must understand them through the lens of time and narrative.

To choose an analytical method and stick by it no matter what the consequences seems to me to make an outrageous assertion that there is only one "right" way to interpret the text presented. If we are to seek the truth behind a narrative, all sorts of interpretive methods must be employed. Varying modes of interpretation interplay with one another to create a more complete understanding of the "truth" underlying the narrative. No single method can accomplish that.

If we are to seek the truth behind a narrative, all sorts of interpretive methods must be employed. Varying modes of interpretation interplay with one another to create a more complete understanding of the "truth" underlying the narrative. No single method can accomplish that.

The truth behind a narrative? I suppose I differ from you on that point -- I don't think there's really any such thing. (I probably differ from Scalia and Thomas on that point too.)

As I see it, the ultimate reality of the law isn't in the theories or the "truth" of the narrative, or anys such metaphysical stuff, but in the concrete punishments administered under the law and in the ways people alter their behaviour in response to their understanding of the law (yes, Holmes's "bad man" and all that). So to me, regularisation of that understanding is, to the degree it is achievable, a sort of condition precedent to the smooth operation of the law in society.

And in some sense, isn't this more humdrum view of law more or less the view we come around to in the contemporary period in Western law? We've abandoned (well, all of us but Justice Thomas) our former commitments to a transcendent theory of natural law, and turned what used to be first and foremost Law, with the capital "L" into a something which is first and foremost a system of regulatory tools with which to fiddle with policy. Law as a tool of governance, rather than as a tool of justice. And for law to operate well as a tool of governance, I think a consistent, maximally constrained interpretative approach needs to be employed.

Marghlar said..."Simon, I can't let you get away with this . . . [snip]"

I think you're thinking I'm saying something I'm not. Terry said that Justice Scalia's philosophy is "look at the original intent of the Founders" - intentionalism. It is no such thing; original intent is not a synonym for all forms of Originalism, and the version of originalism adhered to by myself and generally adhered to by Justice Scalia is original meaning. It is the failure to appreciate the difference - as I explained at more length in the Wikipedia entry - which I called ignorant, because it suggests a lack of attention to detail. I suppose that, from 40,000 feet up and a different intellectual position, it might look pretty similiar to say "I believe what the framers intended governs" compared to "I think what the framers wrote governs," but to anything more than the most cursorary glance, it becomes obvious that they are very different. I do not believe the original intent governs, and nobody who claims to be a formalist should be.

I'm certainly not going to suggest that Brother Nino doesn't occaisionally depart from originalism. But it is noticable that usually (not always), when he hands down an opinion which is non-originalist, it's noticable for the absence of originalism - that is to say, he simply ignores the theory. So at worst, that Scalia sometimes departs from originalism is a critique of Our Hero, not originalism. Of course, these days, it's positively fashionable among conservatives to criticize Scalia, because of Hamdi and because of Raich; now, even though I didn't agree with him in that case, and even though I think that Scalia takes more flak than he ought for Raich, if we assume arguendo that this is Scalia ruling outside of his theory, what's missing? That's right: an originalist analysis. You'll find one of those in Justice Thomas' dissent, so we can say that Scalia sometimes abandons originalism, not that originalism sometimes abandons Scalia.

Raich, of course, brings us to Brother Randy, and his recent essays. I read and criticized the Barnett essay you mentioned here. Randy has done great things for the originalist cause, written some great scholarship, but at this point, he seems to be essentially pursuing a fit of pique against Brother Nino for having the temerity to vote against him in Raich. If I were Randy, I might consider that maybe I lost the case when I failed to differentiate the ivory case at oral argument. But in any instance, this is essentially a temper-tantrum, and not a very substantial one at that. Randy seems to be exploring a bizarre non-formalist branch of originalism entirely of his own making, in which the ninth amendment protects unenumerated rights (because the framers were libertarians, so we have to peg the unenumerated rights somewhere, but Randy has already rejected substantive due process) and where it's important to contemplate why the Constitution is binding, neither of which I'm interested in.

if we assume arguendo that this is Scalia ruling outside of his theory [in Raich], what's missing? That's right: an originalist analysis.

My recollection (too lazy to dig out the case now) is that his argument was that the necessary and proper clause, under its plain textual meaning, was sufficient to permit Congress to exercise a kind of supplemental legislative authority covering the situation in Raich.

Thomas's criticism was (again, working from memory -- possibly I am confusing a different Thomas dissent) that this makes nonsense of much of the Constitution, because so many of the enumerated legislative powers would be covered entirely by this reading of the necessary and proper clause.

In neither case is the argument really "originalist" per se -- they're just textualist, I think. And not inconsistent with originalism.

Balfegor,I think that's actually a pretty fair description of the two positions. The thing is, from my perspective, though, originalism and textualism are not two different interpretive theories - they're two sides of the same formalist approach. Originalism, for me, is an error-correcting lens which one places over textualism when dealing with texts that were not passed recently: textualism says that a text means what it says, assuming that the meaning now is what it was when it was adopted, and originalism says it means what it said when it was adopted, which is little more than a truism that language changes through time. There's an idea, I think, that originalism is a tool you use to interpret the constitution and textualism is a tool you use to interpret statutes, but I don't look at it like that at all: I would use originalism to interpret a statute passed during the civil war as readily as I would use textualism to interpret a brand new constitutional amendment.

Perhaps the best demonstration of this is the 27th amendment, which was proposed in 1791 and ratified in 1992. But it doens't matter what that text meant in 1791, and it doesn't matter what Madison intended it to do, because it wasn't ratified until 1992: what matters is, what did that text mean in 1992? Now, while my son daily brings me examples to the contrary, the use of language hasn't really changed much since 1992, so to interpret the 27th Amendment, we use textualism, not originalism, because no (significant) time has passed.

I think that way of looking at it affects quite substantially how I look at cases like Raich. It's true that Scalia makes a [quasi-]textualist argument in Raich, which is why I think the criticism of him is utterly unwarranted, but where he goes wrong is in failing to consider what Justice Thomas did: just as it doesn't matter what the plain text of the 27th Amendment might have meant in 1791 because it wasn't ratified in 1791, it doesn't matter what the plain text may mean (or support) in 2005, because the necessary and proper clause wasn't adopted in 2005, it was adopted circa 1788. The plain meaning governs, yes, but what matters is the plain meaning at the time it was ratified.

Incidentally, I completely forgot to mention in my previous post that I actually completely share Marghlar's scepticism about the Court's modern sovereign immunity jurisprudence, as I elaborated on at some length here.

I think there is a confusion here. I didn't take from the quotation of Breyer in the post that he lacked principles of interpretation. I took it that he wasn't sure what, if any, principles he might be using.

One can act and reason in a principled manner without being entirely self-aware of what those principles are. Our minds are much more than what we are self-conscious of.

I don't have much of an opinion on Breyer's judicial principles. It doesn't follow, however, that a justice who lacks self-awareness is either unprincipled or pragmatic. Furthermore, it might be better initially to trust your judicial instincts than to trust a judicial philosophy that sounded good before you actually had the power to decide the law of the land. Later those instincts could be shaped up by reflection, as Breyer seems to be doing.

One can act and reason in a principled manner without being entirely self-aware of what those principles are. Our minds are much more than what we are self-conscious of.

Certainly that is true. But, with all due respect to Justice Breyer (and I do mean that) I see no reason to believe that the unconscious impulses of his mind are any more inclined to the rigorous and equitable application of a set of principles than those of anyone else's.

We can all, given a certain minimal amount of imagination, construct compelling post-hoc accounts of why we do things, accounts in which we are perfectly fair and consistent in all particulars (or inconsistent, if you hate hobgoblins). But are those accounts true accounts of why we decided or acted as we did? Can other people feel out the path of the law on such a basis? I suppose one might think so, but I am not convinced.

Balfegor: I would agree that consistency is a virtue, sometimes. Likewise, predictability. But not always. A rule that the SCOTUS always finds in favor of the litigant whose name comes first in the alphabet would be both consistent (always applied the same way) and perfectly predictable. What it would not be is just, or any kind of respectable constitutional adjudication. I demand minded-ness of legal rules, and that means that sometimes they may apply unpredictably in novel situations, and that's just part of life. I also think that where the text of the constitution is unambiguous, it controls, even if it imposes a sometimes-unprecitable inquiry. For instance, procedural due process or search and seizure doctrine both involve some complicated weighing of values, in order to determine what is reasonable practice in different circumstances. But that's not a sufficient reason to reject that application, because even if it is unpredictable, it is the text of the constitution that requires us to undertake that dicey inquiry.

Simon: I liked your sovereign immunity post, and couldn't agree more. We have a fair bit in common -- both textualists in a world where that seems to be rare. I'm just not sure that I see any sweeping interpretive legitimacy in allowing original meaning to define the content of constituitonal text. It's persuasive for me (as is original intent), but not outcome determinative. One of the things I enjoyed about Barnett's article was his probing of the difficulties in determining the legitimacy of original meaning as a controlling factor, which I think many who are devoted to original public meaning are quick to elide.

Since I bring it up, I think you are unfair to Barnett's essay. It exposes an interesting schism in Scalia's thinking -- that he is a textualist, except when he isn't. He seems to have shown that his views as set forth in The Rule of Law as a Law of Rules essentially trump other interpretive methodology, so that he is willing to ignore the constitutional text when it doesn't provide him with the type of rule he would like to apply. Likewise, I think you are over-quick to dismiss the issues raised by Barnett re: the 9th Am. If one accepts his view of the original public meaning of that amendment, it substantially complicates the canonical view among originalist theorists that such an approach will tend to meaningfully constrain judicial discretion. Barnett's essay teases out the interesting fact that many of these theorists, and Scalia, may in fact be more concerned with constraining judicial discretion than they are with a consistent theory of interpretation or constitutional legitimacy.

Re: your response over at Volokh, I think you unfairly cabin Barnett's argument -- which is a textualist interpretation of the 9th Am, which he then informs with public meaning. I don't think you can fairly argue that he is just charging off into the wilderness without text. It might be a reading you disagree with, but I do think it is colorable.

My own problem with Barnett's scholarship has more to do with his vision of what natural law he believes the Ninth Amendment imposes, than the conclusion that it might embody some unenumerated rights. I think his vision of libertarianism is at odds with both the views of the founding generation (which had loads of social and economic regulation) and most of the present generation. I think the 9th can't be construed to extend rights that weren't previously exercised to some degree, because it says "retained," and that's not a mandate for innovation. But it probably does mean that the State can't act in ways that are violative of a traditional, established sense of inherent rights in American culture.

I would also agree that your reading, which is the more canonical, is equally textually plausible. What I think is interesting is Barnett's contention that his is supported by public meaning. I certainly am not in a position to thorougly evaluate his scholarship in this area, but to the degree that one buys his conclusion that the public would have understood the amendment to incorporate natural rights protection into the constitution, that casts the view that one can have both an originalist constitution, and a rule of law as a law of rules, into some doubt.

As for my response to your original post, I probably overstated my antagonism -- I agree that there is a meaningful distinction between intent and public meaning, that many overlook. I get riled up when I feel like you are suggesting that Scalia (or any justice, really) is a consistent devotee of an interpretive methodology. I think he has quite openly put certain outcome-preferences before interpretive consistency. That isn't rare, by any means -- I would say that every sitting Justice partakes of that (even Thomas, who thinks the constitution is color-blind, except in prisons, and who signs on to these ridiculous sovereign immunity decisions).

Which brings us back to Ann's original topic. I think that Scalia has spent more time reflecting on his methodology than has Breyer or other Justices, but I don't think he is that much more consistent to a rigid methodology. He might be more restrained, in the Posnerian sense, but I think even that is subject to some doubt. Breyer likes to balance, except when he thinks the text is important, whereas Scalia likes to hew to the text, except where that conflicts with other outcome-preferences he harbors, like his preference for rule-like doctrine. Is this state of affairs bad? I think its hard to say. I share Scalia's liking for bright lines, but I'm not sure that they are always textually plausible or publically feasible. I think the rarity of absolutist approaches on the Court provides some evidence that what the Nation wants in a Supreme Court is something more than robotic consistency to a methodology.

A rule that the SCOTUS always finds in favor of the litigant whose name comes first in the alphabet would be both consistent (always applied the same way) and perfectly predictable. What it would not be is just, or any kind of respectable constitutional adjudication.

And yet, my understanding of legal positivism (Hart et al.) is that this is a perfectly valid rule to have in law, so long as it is supported by the legal community's rule of recognition. And my understanding is that legal positivism has largely carried the field, outside of academe (we just disagree on the rule of recognition).

In our own case, of course, we are fortunate enough to live in a legal community in which such an an adjudicative rule is not supported by anyone's rule of recognition, because we operate in a system in which judges are constrained (theoretically) by legislators, whether Congressional or Constitutional, and are not free to make up such rules.

If the end served by consistency is, as I think, to improve the efficacy of law as a tool of governance, it's not like judges making up their own substantive rules, however consistent, is in any way going to further law as a tool of anyone's governance but those judges'. But we have not set the judges to govern ourselves.

On the other hand, if we amended the Constitution to permit such a rule and wrote statutes imposing such a last-name preference rule, would such rules be legal? Would they be law? I think they would. Or rather, under the modern understanding of law, which has had "Justice" and "Morality" completely stripped out of it, I think they would.

Anonlawstudent has drunk deeply from the well of post-modernism: There are no "facts"; there is no "truth"; there are only fictional "narratives".

How do we determine what is the best narrative? There no rules because any set of rules would also be a "narrative". At this point the judge (or politician) reaches for his copy of Nietzsche and announces: "If there is no "truth", then why not my "truth?

And my point would be that consistency, as you enunciate it, can never be the whole operating principle of the law, because any law generated in such an arbitrary way would never pass a reasonable society's rule of recognition. One doesn't have to buy into Natural Law to be able to say that, from a normative perspective, there are a variety of valid concerns at play in any constitutional adjudication, and predictability is only one of them. And not always the most important one.

Other key values are legitimacy (from which, to my way of thinking, flows textualism), efficiency, public policy, and individual fairness. I would argue that any law that didn't occasionally put some of these values ahead of consistency would be ridiculous, from my normative pespective. It would also likely be socially unacceptable, and unable to pass a rule of recognition.

Of course, you are correct that if consistency became important enough to the nation that a constitutional amendment took place implementing a rule like the last-name rule, I would likely get little traction with this kind of normative assault on methods of judicial decisionmaking. But that's not going to happen. Our society wants more than that from judges. Good thing, too -- if all they wanted was inflexible consistency, we lawyer-types would be out of work, because cases would be trivially easy to decide. And we'd have a static, inflexible law that never responds in a minded way to changing circumstances, slowly becoming more archaic and arbitrary.

Of course, you are correct that if consistency became important enough to the nation that a constitutional amendment took place implementing a rule like the last-name rule, I would likely get little traction with this kind of normative assault on methods of judicial decisionmaking. But that's not going to happen. Our society wants more than that from judges.

The essential thing, though, is that judges not be the one to make the call. Those judgments have nothing to do with the law or the legal community -- they come (as they must) from outside.

The problem with the last-name rule is that it destroys the power of those who govern (i.e. us) to employ law as an effective tool of governance. Under such a rule, every order we give is interpreted as "alphabetical supremacy rules."

Consistency in interpretation is there to serve us, so that when we establish a pattern of rules, either on the Constitutional or statutory level, we can be reasonably certain that our servants (executive branch folk, judges, etc.) will follow our commands in a predictable fashion, and so that the spread of possible ways in which the terrible power of the state will come crashing down on our heads is constrained.

The other values you cite, e.g.:

legitimacy (from which, to my way of thinking, flows textualism), efficiency, public policy, and individual fairness.

are all values that are properly considered by the people setting up the rules (the legislatures), not by judges. Legitimacy is determined under rules established in the Constitution, of course, so it flows from legislators' directives as well, not the independent judgment of the judiciary. It is not appropriate, I think (or "legitimate" if you prefer), for judges to assume the authority to adjudicate on the basis of any of those values without an explicit statutory delegation of such authority -- one which I do not think the Constitution implies.

Aspects of certain of them, e.g. fairness, are comprehended in some sense by the equal protection clauses and prohibitions on corruption of blood, ex post facto laws, bills of attainder, etc. But efficiency and public policy? I do not think so. Those are questions for lawmakers, not adjudicators.

The problem with your approach is that it doesn't speak to the majority of the judicial enterprise, which consists in gap-filling. Judges constantly have to chose between alternative, plausible interpretations of text, in cases where the legislative history is far from clear. Your search for an algebraic jurisprudence will fail, because in such situations the legislature has given no clear demand as to how its directive is to be applied.

There is no systematic way to give effective meaning to what searches and seizures are "unreasonable", or what process is "due", based solely on text or history. This principles have to be applied in new situations, and once the textual constraints have run out, judges just have to decide what they mean.

Furthermore, it isn't always clear that devices like "original public meaning" even significantly reduce the spectrum of judicial choice. A lot of times, the founding generation disagreed about what provisions meant. Even more often, there just isn't enough evidence to say clearly what they thought something meant. From there on, it's just guesswork -- and guesswork that tends, more often than not, to further the normative views of whoever is pronouncing what the "original" meaning of text was.

Thus, things get dicey. Scalia says he wants to further original meaning, as a way of cabining discretion, because discretion is legislative, not judicial. But then, he is unwilling to follow that meaning when it would lead towards either unacceptable normative outcomes (public flogging) or insufficiently "rule-like" doctrine (the Ninth Amendment). Thus, what he is doing might further predictability, but it arguably flouts the constitutional design and purpose. A lot of times, discretion is delegated to the judiciary. To refuse to exercise that discretion, in the name of predictability, is to elevate consitency over a legislative command. And that is not justifiable from any majoritarian impulse.

If the majority asks judges to make decisions for them (which they often have), it isn't judicial arrogance for the judiciary to oblige. It is judicial obedience. And when it is given to judges to choose, they should properly consider all of the factors I listed, because the delegation is premised on the assumption that judges will make a reasoned choice.

None of which is to say that this is the way things have to happen. If the nation repeals the Fourth Amendment and replaces it with a list of proscribed police procedures, the justices won't have to consider social policy as often as they do now. But they didn't do that -- instead, they punted the determination of what police practices are "reasonable" onto the judiciary. In making that determination, I want judges to think hard, and consequentially, about their decisions.

I'm glad that someone else agrees with me regarding sovereign immunity; I'd been starting to wonder if perhaps I was going a little mad, since I seemed to be the only person who thought that both sides of the current court have it wrong. I think we've driven ourselves into a completely weird cul-de-sac in the service of...I don't know precisely what it's in the service of.

I don't really try to gloss over the authority of the original meaning, it's just that it seems axiomatic to me that any positive law means what it says. And it just seems like an obvious inference that if the law means what it says, it means what it said as it would have been understood at that time. I mean, these seem self-evident to me, so I don't mean to give them short shrift, I just find it difficult to understand how or why anyone would say a law means anything other than what it says, without making a mockery of the legislative process. One of the nicest summaries of formalism I've seen is actually one of the most brutally critical, in 1 Critical Lawyer's Handbook 7, by Adelman & Foster. I read that and thought to myself, "there, you see? Even when someone's trying to rip it to shreds, they can't do it! They just end up describing formalism, and declaring its virtues to be vices. So much for the vaunted 'crit' movement!", I thought.

Regarding Scalia and his occaisional infidelity, I can only really add emphasis to what I've said already, which is that I think it's important to note that when Scalia does wander off the reservation, he wanders off it without originalism, which makes those departures a criticism of him, not the theory, which I'll grant is a point that Randy makes. None-the-less, I think Scalia is far more consistent than he is given credit for, and I continue to think this is basically just a counterproductive temper tantrum on Randy's part. I respect Randy enormously, I continue to be appreciative of the work he contributes, but I think he's being misguided in his present endeavour.

I also think he's reaching the wrong conclusions where the Ninth Amendment is concerned, but what I'd try to make clear is that I'm not suggesting that I think he's off in his own little world, or that he's dressing ujp his own views as originalism, as he accuses Scalia of. Rather, I just think that Randy is (subconciously) looking for a justification of his normative preferences within the original meaning, and discarding evidence to the contrary. Hence, he continues to fail to appreciate that one has to read the ninth and tenth amendments as the single statement that they started out as: see III Annals of America 358 (Madison's speech introducing the bill of rights in Congress), wherein the text that would become the ninth and tenth amendments are introduced as a SINGLE amendment: "[t]he exceptions here or elsewhere in the Constitution made in favor of particular rights shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or merely inserted for greater caution." In my view, this is a fatal rejoinder to theories that bifurcate the ninth and tenth amendments, because it makes inescapable the conclusion that their object was identical. One this is understood, the "repository of unenumerated rights" vision of the Ninth Amendment is unsustainable, in my view. Even, however, if it could survive contact with this evidence, it should be amply clear, though, that the meaning I suggest is at least as plausible an interpretation as the one Randy advances, which leads me to wonder why he doesn't defend his theory on its own terms, instead of casually dismissing alternative theories.

I do have more things to say (always do), but my arm's starting to hurt now, so I'm going to take a break and get some red wine. ;)

I'll also try to be brief -- we don't want to be accused of abusing Ann's courtesy...

In regard to Barnett & the 9th Am, I'd reply that I exercise a presumption when reading text that no provision of the constitution is empty of content, and to read the 9th and 10th Amendments as identical is to deprive the former of content. That's bad textual interpretation from my point of view -- I keep in mind Justice Marshall's maxim. So, I'd posit that absent strong evidence to the contrary, the 9th Amendment needs to have independent force. Furthermore, I think you read its legislative history to say more than it does. In fact, I'd assert that the very fact that the two concepts were bifurcated under different numerals, means that the drafters believed they stood for different, and independent propositions. And in general, when an earlier version of text is amended, I assume that the amendment intended to change the content in some meaningful way. And I think Barnett's position here is at least plausible...

On Scalia, I'd agree that he is more consistent than some would make out. My point was more that it may be a mistake to label him as a Justice committed to originalism above all else -- I think he would give pride of place to his "rule-like rule" philosophy before his committment to textualism. In fact, he seems to have said that explicitly. Thus, I take his statements asserting a committment to original public meaning with a grain of salt. I think that he may use such interpretive methods more as a means to an end (cabining judicial discretion and forming rule-like rules) than as an end in themselves.

And yes, I'd agree that this is a description (I'm not sure I'd go so far as to say a criticism) of Justice Scalia, not of originalism, in any incarnation. I'm not sure I'm here to criticize originalism, except to say that it may unduly limit legitimate interpretive options. For me, that doesn't make it wrong...it might make it less effective than it could be. But I understand that part of the goal of most originalists is to reduce judicial choice, and it probably serves that purpose to some degree, if not as much as many proponents would claim. But cabining judicial discretion is not a goal I share to the same degree as some others, so I am not as persuaded by that justification.

Since I'm going in reverse order: I think it is too simple to say that A: it means what it says, and therefore B: it means what it meant to people 200 years ago. To say that language controls is not to say whose language controls. Furthermore, I've never heard a really convincing justification for why I ought to defer to a dead person's interpretation of text, if mine is linguistically plausible. I may have consented to be bound by the text of this constitution, but that doesn't mean I have necessarily agreed to import interpretive glosses that I did not know existed, and that may not always be discoverable. That isn't to say that I wouldn't treat both the original intent and the original public meaning of the constituiton with care and reverence in coming to a conclusion as to what its terms mean. I think it was written by smart people who had great things to say regarding the construction of governance. But they are dead, we are not, and if I have a colorable interpretation of the text, I'm not sure why it should be fatal that it wasn't theirs.

But I am open to attempts to convince me that I am wrong here...I hope you enjoyed the wine. I myself am off for some good whiskey.

I don't think our hostess generally minds if debate ranges off the topic at hand, as long as it remains in the ballpark, and remains polite. ;)

I don't think it renders the Ninth Amendment devoid of content (or that it deprives it of independent force) to say that its meaning is intimately tied to the meaning of the Tenth Amendment; even if they are two sides of the same coin, they Are two sides, and they inescapably say different things, even if they say different things on the same subject. I agree with you, of course, that the Constitution should always be read with the presumption that every clause means something, and I certainly agree that Randy's position is not ludicrous, I'd just like it if he could propose his theory without the overtones suggesting that his preferred result is the only game in town. I can entirely see that tehre are other interpretations possible, I just don't find them convincing. That's a far cry from declaring as Randy does, that any alternatives violate the terms of the Ninth Amendment.

I think you're right to suggest that originalists want to reduce judicial discretion, but that usually happens as a direct consequence of sticking to the text. The reality is that judicial discretion can't be done away with entirely, and any theory that claims otherwise is wrong. To describe a case is not always to decide it; I think it's fairly clear that we know what the plain meaning of ERISA is, yet every year, it's lawsuit after lawsuit. Why? Because even once you know the original meaning of a text, there's always the question of how a necessarily general textual provision relates to the case in front of the judge. Even if we knew beyond serious dispute what the commerce clause originally meant, we wouldn't abolish lawsuits revolving around it. What a judge should do when the original meaning is clear but when it supports two or more equally reasonable results is one of the more interesting debates among originalists. Some (Bork, Strang) suggest that in cases of underdeterminacy, the judge's authority to rule is minimal. Others (Scalia) say you need to look to tradition. I would suggest that you need to look to tradition, you need to look to precedent, and you need to have a willingness to broadly defer to the elected branches.

Discussing your penultimate paragraph could lead into a huge and lengthy debate, so I'm going to hold fire for now. ;) And where bourbon is concerned, Maker's Mark is ths stuff you're going to want to try. :p

I think we've pinned down our disagreement pretty well...in addition to determining that we like some of the same liquors...

I think your reading of 9/10 runs into trouble because, to the degree that the ability to declare additional rights wasn't delegated to Congress outside of certain delineated areas, the 10th gives that power to the States of its own force. Thus, the 10th Amendment already gives states the power to restrict their legislative discretion to a greater degree than the federal constitution would require. Such a power is, by definition, not reposited in Congress, except in areas that the States could not tread upon by virtue of the Supremacy Clause. So I think your interpretation of the 9th does tend towards redundancy.

I'd probably agree that Barnett's tone is a little grand. That's part of what I enjoy about him -- he is very willing to stake out an agressive position in a way that will stimulate debate. I look forward to a renewed attention to the history surrounding the ratification of the 9th am, as a response to Barnett's work. I think that, at the least, he has staked out a position plausible enough that any meaningful future treatment of the Ninth Amendment by an originalist scholar will have to address it. And that's certainly a good thing (even if it was partly motivated by an ax he wanted to grind, which I certainly wouldn't rule out...).

Re: discretion. I think the framework you set out elides the fact that some constitutional provisions read very much like delegations of standard setting power to the judicial branch. When the constitution imposes a "reasonableness" rule, or requires that process be "due," or prohibits "cruel and unusual punishment," the natural reading seems to be that rather than write a code of procedure, they want to leave it to the judgment of future courts. (This is to presume that they intended judicial review, which I acknowledge is an assumed premise here...) To defer to a legislature is to flout the constitutional command that the judiciary not be a party to constitutional violations, in such cases. Thus, in addition to determining how rules apply to facts, the judiciary is sometimes called upon to exercise some discretion about what appropriate rules are, given modern conditions.

Thus, for me, when the Court defers to Congress in regards to a free speech issue, as in McConnell v. FEC, I don't think that's laudable restraint, I think that's lawless constitutional avoidance. We may have imposed a bunch of things on the constitution that it cannot support (for instance, although I am a proponent of abortion on demand, I'd agree with you that it can't be found in the constitutional text). But we've also failed to enforce a fair bit of the constituion that is written down, like the First Amendment. And just maybe the Privileges and Immunites Clause of the 14th Amendment and the Ninth Amendment, with their protection of unenumrated, traditional civic rights, is part of that forgotten constitution.

Don't you like how I tied that back together? Now, back to working for the man. The Ninth Amendment is much more fun than my motion to dismiss, that's for damn sure.